[Redacted], Kathy D., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Headquarters), Agency.

Equal Employment Opportunity Commission

May 17, 2022

Appeal No. 2020004451 (E.E.O.C. May. 17, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Kathy D.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Headquarters), Agency. Appeal No. 2020004451 Hearing No. 471-2018-00111X Agency No. 4X-048-0007-18 DECISION On July 22, 2020, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s June 30, 2020, final decision concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Customer Care Agent at the Agency’s Troy, Michigan Customer Contact Center. Complainant identified her physical disability as diabetes, high blood pressure, and a heart murmur. Report of Investigation (ROI) at 77. Complainant averred that, as a result of her medical conditions, she was not able to work a full eight-hour day, needed to take frequent bathroom and meal breaks, and could not participate in any activities lasting longer than one hour without taking a bathroom break. ROI at 77-78. 1 This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is published to non-parties and the Commission’s website. 2020004451 2 According to Complainant, her Supervisor and the Operations Manager were aware of her disability because she had submitted paperwork in connection with her request for Family and Medical Leave Act (FMLA) leave, most recently on July 28, 2017. ROI at 77. Complainant alleged that, beginning in July 2017, she made multiple requests for reasonable accommodation, consisting of part-time hours and the ability to take frequent bathroom breaks, to management. ROI at 79-80. Complainant averred that she did not receive a response her request for accommodation and noted that management objected to her taking bathroom breaks and sometimes requested that she work overtime, although she was not forced work overtime. ROI at 80-81. On November 21, 2017, Complainant submitted her resignation, effective December 1, 2017, stating that she was leaving due to health concerns. ROI at 80-81, 100. Complainant’s Supervisor stated that, although Complainant told her that she had diabetes, she did not know whether Complainant had any medical restrictions. ROI at 126-27. The Supervisor averred that she did not receive a request for reasonable accommodation from Complainant and was not aware of any request for accommodation. ROI at 127-32. According to the Supervisor, Complainant had satisfactory attendance and, shortly before submitting her resignation, she was recognized as the most improved Agent on her team. ROI at 132. The Operations Manager stated that he was not aware that Complainant had a medical condition until she submitted her resignation in November 2017. ROI at 146. According to the Operations Manager, Complainant did not request a reasonable accommodation. ROI at 146-51. The Operations Manager averred that, although all of the positions in the department were full-time, he would have worked with Complainant if she had medical restrictions limiting the number of hours she could work. ROI at 152. The record contains a Certification of Health Care Provider for Employee’s Serious Health Condition form for Family and Medical Leave Act (FMLA), which was signed by Complainant’s physician on July 11, 2017. ROI at 91-98. Complainant’s physician stated that Complainant needed to frequently drink and urinate as a result of her diabetes and might need hourly bathroom breaks. ROI at 94-95. Under the section for amount of leave, Complainant’s physician indicated that Complainant would need to attend office visits two times monthly and estimated that Complainant would need to work a reduced schedule. ROI at 95. On January 29, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of disability (physical) when, on unspecified dates, she was denied reasonable accommodation, which forced her to resign her position as a Customer Care Agent on December 1, 2017. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing but subsequently withdrew her request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The Agency concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. 2020004451 3 For the purposes of the decision, the Agency found Complainant to be an individual with a disability and a qualified individual with a disability. However, the Agency concluded that Complainant did not establish that the Agency failed to reasonably accommodate her because Complainant did not request a reasonable accommodation and her supervisors were not aware of Complainant’s need for accommodation. Complainant alleged that she requested a part-time schedule and frequent bathroom breaks. The Agency noted that, although Complainant’s physician indicated in her FMLA paperwork that Complainant would need frequent restroom breaks and would time off work, this medical documentation was not provided to Complainant’s supervisors, and approval for FMLA leave is not the same as approval for a part-time schedule or other reasonable accommodations. Finally, the Agency found that a reasonable person would not have considered the working conditions intolerable and felt compelled to resign. The Agency stated that Complainant decided to resign instead of requesting a reasonable accommodation or pursuing other options. The instant appeal followed. Complainant did not submit a statement or brief in support of her appeal. ANALYSIS AND FINDINGS As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker,” and that EEOC “review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). Complainant alleged that she was denied a reasonable accommodation for her disability and that she was constructively discharged when, as a result of the Agency’s failure to accommodate her, she was forced to resign. As a preliminary matter, a constructive discharge, such as the one at issue here, is a claim over which the Merit Systems Protection Board (MSPB) typically has jurisdiction. It is well settled that the Commission may properly assume initial jurisdiction of a mixed case matter when it becomes so firmly enmeshed in the EEO process that it would unduly delay justice and create unnecessary procedural complications to remand it to the MSPB. See Harrell v. Dep’t of Veterans Affs., EEOC Request No. 05940652 (May 24, 1995). Under the circumstances of this case, we find that the constructive discharge is so firmly enmeshed in the EEO process that a remand to the MSPB would be improper, and that it would better serve the interests of administrative economy to address the disposition of the claim here on appeal.Complainant alleged that she was denied a reasonable accommodation. In order to establish that Complainant was denied a reasonable accommodation, Complainant must show that: (1) she is an individual with a disability; (2) she is a qualified individual with a disability; and (3) the Agency failed to provide a reasonable accommodation. See EEOC Enforcement 2020004451 4 Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, No. 915.002 (Oct. 17, 2002). An agency is required to make reasonable accommodation to the known physical and mental limitations of a qualified individual with a disability unless the agency can show that accommodation would cause an undue hardship. 29 C.F.R. §§ 1630.2(o) and (p). “The term “qualified,” with respect to an individual with a disability, means that the individual satisfies the requisite skill, experience, education and other job-related requirements of the employment position such individual holds or desires and, with or without reasonable accommodation, can perform the essential functions of such position.” 29 C.F.R. § 1630.2(m). When an employee's disability or need for an accommodation is not known or obvious, an employer may ask an employee for reasonable documentation about his or her disability, limitations, and accommodation requirements. See EEOC Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act, Q. 7 (July 27, 2000). Turning to the third prong, we agree with the Agency that Complainant has not established that she was denied a reasonable accommodation. Both the Supervisor and the Operations Manager denied knowledge of Complainant’s medical restrictions. Although the Operations Manager emailed Complainant on June 28, 2017, stating that reports showed Complainant was spending more than an hour in the restroom, the Operations Manager raised the issue in the context of which “not ready” code Complainant selected and advised that, if she was having a medical issue, she should let her supervisor know. ROI at 99. The Operations Manager stated that he sent a similar email to other employees with a lot of unproductive time coded as restroom and indicated that Complainant never discussed the email with him. ROI at 155-56. There is no evidence in the record that Complainant responded to the Operations Manager’s email or otherwise requested accommodation for a medical condition. While Complainant’s FMLA paperwork did address her need for frequent restroom breaks and time off work for her medical conditions, we find that her request for FMLA leave and supporting documentation, without more, was insufficient to communicate her need for accommodation. Moreover, a series of emails between Complainant and an Occupational Health Nurse Administrator from September 21, 2017, and October 3, 2017, reflects that Complainant’s supervisors were not aware of the medical restrictions outlined in her FMLA paperwork, but Complainant has not established that she communicated her need for accommodation with her supervisors, with the Occupational Health Nurse Administrator, or with other Agency officials. ROI at 102-03. Therefore, Complainant has not established by the preponderance of the evidence that she requested a reasonable accommodation. Complainant also alleged that she was constructively discharged. The central question in a constructive discharge case is whether the employer, through its unlawful discriminatory behavior, made the employee's working conditions so difficult that any reasonable person in the employee’s position would feel compelled to resign. Carmon-Coleman v. Dep’t of Def., EEOC Appeal No. 07A00003 (Apr. 17, 2002). The Commission has established three elements which a complainant must prove to substantiate a claim of constructive discharge: (1) a reasonable person in the complainant's position would have found the working conditions intolerable; (2) conduct that constituted discrimination against the complainant created the intolerable working 2020004451 5 conditions; and (3) the complainant's involuntary resignation resulted from the intolerable working conditions. See Walch v. Dep’t of Justice, EEOC Request No. 05940688 (Apr. 13, 1995). We agree with the Agency’s conclusion that Complainant did not establish that her working conditions were so intolerable that a reasonable person in her situation would have felt compelled to resign. Although Complainant received an email about the amount of time records showed she was in the restroom on June 28, 2017, and was asked to work overtime, there is no evidence in the record that Complainant was denied a restroom break or required to work overtime. Accordingly, Complainant has not established by the preponderance of the evidence in the record that she was subjected to discrimination as alleged. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final decision finding no discrimination. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that tend to establish that: 1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or 2. The appellate decision will have a substantial impact on the policies, practices, or operations of the agency. Requests for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx 2020004451 6 Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c). COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610) You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. “Agency” or “department” means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. 2020004451 7 Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations May 17, 2022 Date